Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 WP(C) NO. 16056 OF 2020 PETITIONER:
HAMSA KOYA K.T.
AGED 54 YEARS ELAVANAKANDY PARAMBA, PANICKER ROAD, NEAR M.E.S.COLLEGE, NADAKKAVU P.O., KOZHIKKODE, PIN-673 011.
BY ADV B.PREMNATH (E) RESPONDENTS:
1 GOVERNMENT OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT, ROOM NO.396, FIRST FLOOR, NEAR SOUTH CONFERENCE HALL, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695001.
GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.
IS SUBSITITUTEDIN PLACE OF EXISTING RESPONDENT AS PER ORDER DATED 14.09.2020 IN IA 2/2020.
2 KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., A GOVERNMENT OF KERALA UNDERTAKING, REGISTERED OFFICE AT LEVEL 8 (6TH FLOOR), TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-14, REPRESENTED BY ITS MANAGING DIRECTOR.
3 PRINCIPAL PROJECT CONSULTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., A GOVERNMENT OF KERALA UNDERTAKING, REGISTERED OFFICE AT LEVEL 8 (6TH FLOOR), TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-14.
BY ADV SHRI.T.P.SAJAN, SC, KTDFC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16056 OF 2020 2 DINESH KUMAR SINGH, J.
-------------------------------------------- WP(C) NO. 16056 OF 2020 -------------------------------------------- Dated this the 10th day of November, 2023 J U D G M E N T 1.
Heard Sri. Premnath B, learned counsel for the petitioner, Smt. Reshmita Ramachandran, learned Government Pleader and Sri. T.P Sajan, learned Standing Counsel for respondent Nos. 2 and 3.
2.
Petitioner has been granted license in pursuance to the tender invited by the Kerala Transport Development Finance Corporation Ltd. for toilet facilities at the Kerala State Road Transport Corporation bus terminal cum shopping complex, Angamaly. An agreement dated 05.04.2019 was entered into between the Kerala Transport Development Finance Corporation Ltd., a State Government undertaking with the petitioner in respect of licence for operation and maintenance of pay and
WP(C) NO. 16056 OF 2020 3 use toilet facilities on the ground floor of the KSRTC Bus Terminal Complex, Angamaly. The said licence was granted for a period of one year and the licence fee agreed to be paid by the petitioner was Rs.3,76,200/-. Under the agreement itself, it was provided that the petitioner would be liable to pay GST amount of 18% on the said amount of licence fee which is 9% CGST + 9% SGST.
3.
The petitioner deposited a portion of the licence fee under the licence agreement. However, he did not deposit the GST amount though he agreed to deposit the GST at the rate of 18% of the licence amount under the agreement Ext.R2(C). It appears that the petitioner has also not deposited the entire licence fee as per the counter affidavit filed. As the petitioner failed to deposit the required GST on the licence fee of Rs. 3,76,200/-, the 3rd respondent served notice dated 18.01.2020 directing the petitioner to remit GST on the licence fee at the rate of 18%.
WP(C) NO. 16056 OF 2020 4 4.
The learned counsel for the petitioner submits that the impugned notice in Ext.P2 is without jurisdiction in as much as the Central Government as well as the State Government have issued notifications dated 28.06.2017 and 30.06.2017 respectively, exempting under heading 9994, the services by way of public conveniences such as provision of facilities of bathroom, washrooms, lavatories, urinal and toilets from payment of GST. The learned counsel for the petitioner therefore submits that in view of the specific exemption from payment of GST on the service by way of public conveniences such as provision of facilities of bathroom, washrooms, lavatories, urinal and toilets, the petitioner is not liable to pay the GST on this amount of Rs. 3,76,200/-.
5.
On the other hand, Smt. Reshmita Ramachandran, learned Government Pleader submits that no tax is being levied on the sum collected by the petitioner in providing service by way of public
WP(C) NO. 16056 OF 2020 5 conveniences such as provision of facilities of bathroom, washrooms, lavatories, urinal and toilets.
The 18% GST, i.e., 9% CGST and 9% SGST is demanded on the licence amount under the agreement entered into between the petitioner and the Kerala Transport Development Finance Corporation Ltd. It is further submitted that the licence fee is not exempted from payment of the GST and the licence fee is on supply of service, and it is covered under the scope of supply under Section 7 (1A) of GST Act.
6.
I find substance in the submission of learned Government Pleader. The petitioner has entered into an agreement in Ext.R2(C) for taking on licence the facilities from the 2nd respondent for providing the toilet facilities to the general public on fixed charge which is mentioned in clause 4 of the agreement. The demand of tax is not on the charges collected by the petitioner from the general public for use of toilet facilities within the designated area at the ground
WP(C) NO. 16056 OF 2020 6 floor of the premises of KSRTC Bus Terminal Complex, Angamaly. The demand of tax is on consideration of licence fee of the said facilities taken by the petitioner for providing toilet facilities to the general public on the basis of the charges as fixed under the agreement.
7.
Therefore, there is no substance in the submission of the learned counsel for the petitioner that the tax is being demanded on services by way of public conveniences such as provision of facilities of bathroom, washrooms, lavatories, urinal and toilets..
8.
Thus the present writ petition is hereby dismissed.
Sd/- DINESH KUMAR SINGH JUDGE rpr
WP(C) NO. 16056 OF 2020 7 APPENDIX OF WP(C) 16056/2020 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF G.O.(P) NO.73/2017/TAXES OF THE 1ST RESPONDENT, PUBLISHED AS SRO NO.371/2017 DATED 30.6.2017 IN THE KERALA GAZETTE, EXTRA ORDINARY.
EXHIBIT P2 TRUE COPY OF THE LETTER NUMBER KTDFC/BOTP/OMPUT/ANKY/2019 OF THE 3RD RESPONDENT, DATED 18.1.2020.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE STATE COMMERCIAL TAX COMMISSIONER TO ONE SURESH KUMAR, DATED 17.2.2019.
RESPONDENT’S EXHIBITS EXHIBIT R2 A TRUECOPY OF THE E-TENDER NOTIFICATION NO.
KTDFC/BOTP/ETENDER/310/OMPUT/ANKY/209 DATED 22.02.2019.
EXHIBIT R2 B TRUE COPY OF THE TENDER ACCEPTANCE LETTER NO KTDFC/BOTP/E-TENDER/OMPUT/ANKY/310/2019 DATED 26.03.2019 ISSUED BY KTDFC TO THE PETITIONER.
EXHIBIT R2 C TRUE COPY OF THE AGEEMENT DATED 05.04.2019 EXECUTED BETWEEN KTDFC AND THE PETITIONER.
EXHIBIT R2 D TRUE COPY OF THE REPLY LETTER NO.
KTDFC/BOTP/KKD/276/17 DATED 24.06.2020 SENT BY KTDFC TO THE ADVOCATE OF THE PETITIONER.